Montana Public Records Guide

Montana Freedom of Information Act

Overview

Montana’s FOIA was originally established way back in 1895, but received a rewrite in 1972 when the state created a new constitution. All branches of government are open for requests in Montana, and any person in any state can request records from Montana agencies. Fees in Montana are 10 cents a page for copying, and a half hour free of search time with $8.50 an hour being the cost for anything over a half hour of labor. There are no fee waivers in Montana to help out with costs. There are also no penalties for agencies who violate the law, no public records custodian, and no administrative appeal. This makes appealing very difficult in Montana, and puts little pressure on agencies to make sure they are in compliance with the law. One bright spot is that attorney’s fees are recoverable if you win your case.

Exemptions in Montana are a little bit unique. Instead of a list of exemptions there are very broad guidelines here. Private writings and personal privacy concerns (especially in regard to trade secrets or individual or public safety) are the only two exemptions listed. This makes case law especially important in determining what records are open and which are exempted. It also can add to appeal difficulty by making it difficult to know what is the appropriate way to argue your case, since the exemptions are very broad and can be interpreted in many ways. We have included some relevant case law in the sections below.

Can you submit a request if you’re not a resident?

To whom does this apply?

Executive?

Legislative?

Judicial?

Who is exempted?

Is there a designated records custodian?

How long do they have to respond?

Not specified in Montana. There is also no case law or statutory law that recognizes a delay as a denial. This makes appealing in Montana somewhat challenging if an agency simply ignores your request.

Does the agency have to give you a tracking number or estimated date of completion?

No.

Can they ask why you ask?

No.

What enforcement?

There are no penalties for agencies in violation of the Montana FOIA.

Fees?

An executive order by the Office of the Governor in 1996 made 10 cents a page the statewide copying charge. The first half hour of search time is free, after that there is an $8.50 an hour charge.

Are there fee waivers for media requests or those made in the public interest?

No.

Attorney’s fees - Can you win them?

Yes.

Exemptions and Appeals

What exemptions exist?

In Montana there is no long list of exemptions covering individual categories of records. Instead, there is language stating that “private writings” and any records where personal privacy is clearly more important than the need for public disclosure. Specifically concerning the privacy exemption are two situations that are deemed worthy of citing the exemption: legitimate trade secrets, and matters related to individual or public safety. These are at once very short, and very broad, which can be restrictive in its own way.

There is a lot of case law that has been created due to the extensive scope of Montana’s exemptions. In Great Falls Tribune v. Mont. Pub. Serv. Commn., 319 Mont. 38, 82 P.3d 876 (2003) the Montana Supreme Court held that corporations and other non-human entities are not subject to the privacy exemption. Svaldi v. Anaconda-Deer Lodge County, 325 Mont. 365, 106 P.3d 548 (2005) found that a teacher’s grievance about emotional distress following a release of records relating to discussions with his attorney, was not a violation of the act due to the public’s need to know outweighing privacy concerns. In Great Falls Tribune Co. Inc. v. Day, 289 Mont. 155, 959 P.2d 508 (1998) the Montana Supreme Court struck down a statute that kept contract proposals confidential. Their reasoning was that the state’s economic advantage was not a privacy matter. Bozeman Daily Chronicle v. City of Bozeman Police Department, 260 Mont. 218, 859 P.2d 435 (1993) upheld that the newspaper could obtain the name and investigation details of a police officer who was subject to charges of unconsented sexual intercourse. This was because the privacy concerns were trumped by the police officer’s breach of public trust. Montana Human Rights Division v. City of Billings, 199 Mont. 434, 649 P.2d 1283 (1982) was very important for the Montana Supreme Court to identify the kinds of records that could be closed to the public. This included family problems, health problems, employee evaluations, military records, IQ test results, prison records, drug and alcohol problems, and information “most individuals would not willingly disclose publicly.” This helped create the two part question that Montana uses to assess whether someone has a legitimate right to privacy. They are:
1. Did the person involved have an actual or “subjective” expectation of privacy; and, if so
2. Is that expectation “reasonable”?

If both of the answers to the questions are yes, then the records can be legally withheld from a requester.

A more detailed compiling of the case law that has helped shape Montana exemptions can be found in our resource section.

Do they have to tell you why a portion or pages were redacted or withheld?

Yes.

How much time do you have to appeal?

There is no language in the law specifying how long one has to appeal. It is always good advice to appeal sooner rather than later no matter what state you are in.

Can you appeal the courts?

Yes, with no administrative appeal, the courts are in fact the only option for appeal in Montana.